JOSEPH MILLER, JR., M.D. AND BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE
JOSEPH C. LARRE AND ASHLEY D. NICHOLS AS COUNSEL FOR/AND MONIQUE EVANS, WIFE OF/AND JOHN EVANS, INDIVIDUALLY AND ON BEHALF OF AIDEN EVANS
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 743-423, DIVISION
"G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, JOSEPH MILLER, JR., M.D. AND
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND
AGRICULTURAL AND MECHANICAL COLLEGE Katherine B. Muslow
Meredith A. Cunningham.
COUNSEL FOR DEFENDANT/APPELLANT, JOSEPH C. LARRE PERSONALLY
ON BEHALF OF MONIQUE, JOHN AND AIDEN EVANS, AND J LARRE LAW
FIRM LLC Joseph C. Larre'.
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Robert A. Chaisson.
A. CHAISSON, JUDGE.
nullity action of a prior medical malpractice judgment by
default, Joseph C. Larre, Monique Evans, and John Evans,
appeal a summary judgment in favor of Dr. Joseph Miller, Jr.
and the Board of Supervisors of Louisiana State University
and Agricultural and Mechanical College ("LSU")
that declared the prior medical malpractice judgment by
default against Dr. Miller an absolute nullity. Mr. Larre and
the Evans further appeal the denial of their cross-motion for
summary judgment. For the reasons that follow, we affirm the
judgment of the trial court.
AND PROCEDURAL HISTORY
October 30, 2008, John Evans and his wife, Monique Evans,
filed suit on behalf of themselves and their minor child
against Dr. Joseph M. Miller, Jr., alleging that Dr. Miller
had committed medical malpractice regarding advice and
recommendations that he gave to the Evans regarding
termination of Mrs. Evans' pregnancy. The Evans'
petition indicated that it was filed pursuant to La. R. S.
40:1299.41, et seq., which is the Louisiana Medical
Malpractice Act ("LMMA") for private
physicians. After the citation to Dr. Miller was
returned by the Jefferson Parish Sheriff as
"unserved," the Evans requested the appointment of
a special process server to effectuate service.
the return of service by the special process server was filed
indicating personal service upon Dr. Miller by "Drop
Service," and the delays for answering the petition by
Dr. Miller had expired with no answer being filed, the Evans
proceeded to confirm a default judgment against Dr. Miller in
the underlying medical malpractice action, which judgment
against Dr. Miller in the amount of $47, 850 was rendered on
January 3, 2012.
October 16, 2014, after learning of the default judgment as
the result of an attempted garnishment of Dr. Miller's
wages, Dr. Miller and his employer, LSU, filed suit against
the Evans and their attorney, Joseph C. Larre, to have the
January 3, 2012 default judgment annulled. In their petition
to annul, Dr. Miller and LSU alleged that the default
judgment was an absolute and/or relative nullity for four
reasons: first, Dr. Miller, as a state-employed physician
working within the course and scope of his employment at the
time that he treated Mrs. Evans cannot be cast in judgment
pursuant to the Louisiana Malpractice Liability for State
Services Act ("MLSSA"); second, LSU, as the
employer of Dr. Miller, is an indispensable party to the
action against Dr. Miller that the Evans failed to join in
the litigation; third, because they failed to join an
indispensable party, the procedures used by the Evans to
obtain the default judgment were fatally flawed; and fourth,
the Evans failed to serve Dr. Miller with citation and
process in the underlying malpractice action.
31, 2017, Dr. Miller and LSU filed a motion for summary
judgment asserting that there were no genuine issues of
material fact regarding the four deficiencies to the default
judgment as alleged in their petition to annul and that they
were therefore entitled to judgment as a matter of law
declaring the January 3, 2012 default judgment a nullity. In
response, on January 9, 2018, Mr. Larre and the Evans filed
an opposition to the motion for summary judgment and also
filed their own motion for summary judgment, apparently
seeking to have the petition to annul dismissed.
hearing the motions for summary judgment, the trial court, on
May 24, 2018, granted Dr. Miller's and LSU's motion
for summary judgment, declaring the January 3, 2012 default
judgment absolutely null, and further denied Mr. Larre's
and the Evans' motion for summary judgment. It is from
this May 24, 2018 judgment that Mr. Larre and the Evans now
Larre and the Evans raise the following issues in their
assignments of error: 1) whether genuine issues of material
fact exist that preclude summary judgment in favor of Dr.
Miller and LSU; 2) whether Dr. Miller acquiesced in the
judgment by not attempting to enjoin its enforcement; 3)
whether LSU was an indispensable party to the underlying
litigation; 4) whether Dr. Miller and LSU have shown that
fraud or ill practices were used to obtain the judgment; 5)
whether the trial court erred in denying Mr. Larre's
motion for summary judgment regarding Dr. Miller's and
LSU's claim for legal malpractice against
6) whether the claim of Mr. Evans, who did not have a
doctor/patient relationship with Dr. Miller, sounds in
medical malpractice; and 7) whether the claim of Mrs. Evans
was not entirely a medical malpractice claim as it ...